Undocumented Sexual Assault Victims Face Backlash and Backlog
In 2008, the government began offering a new category of visas for undocumented victims of domestic violence, sexual assault, human trafficking and other serious crimes, as long as they cooperate with authorities in the investigation. Known as the U visa, it’s the only real protection that these women have.
Undocumented women face unique struggles in seeking justice and protection from perpetrators of sexual violence. In addition to the stigma attached to reporting and the fear that they won’t be believed, they also face the threat of deportation for themselves or their families if they file a report with a law enforcement agency.
Today, immigration advocates say those challenges haven’t abated, and the backlog for coveted U visas has only grown. At least three women featured in the FRONTLINE investigation Rape on the Night Shift were able to obtain one after reporting their alleged assaults.
But there are still several barriers in the process.
By law, the number of U visas available for victims are capped at 10,000 each year. More than 45,000 people applied in 2014, according to the U.S. Citizenship and Immigration Services (USCIS), including victims and their family members. The 10,000 visas for victims were all handed out within months of becoming available, with another 8,500 approved for their relatives. By the end of 2014, more than 79,000 petitions were still pending. Immigration attorneys say decisions can take more than a year.
In a nod to the growing demand for U visas, the Senate tried in 2012 to temporarily increase the size of the cap in its reauthorization of the Violence Against Women Act, a bipartisan bill that includes protections for victims of domestic violence and other crimes. House Republicans killed the bill, objecting to the additional visas, as well as discrimination prohibitions for LGBT victims of domestic violence and new protections for Native American women. The law was ultimately reauthorized without the additional U visas in February 2013.
A “CULTURE OF HOSTILITY”
Even filing an application can be a major challenge. To qualify, applications must be certified by a government official. Undocumented women who are assaulted at work can file a complaint to the Equal Employment Opportunity Commission, which has the power to certify a U-visa petition. Many more women appeal to the law enforcement agencies to whom they report the crime. The officials must attest that the victims cooperated with the case.
A woman’s undocumented status can make law enforcement officials more wary about offering them help, say victim-rights advocates.
“There’s this culture of hostility toward sexual assault victims,” said Sandra Park, an attorney with the ACLU’s Women’s Rights Project. “For immigrant victims, it’s compounded by a distrust of what their motivations might be, particularly if they’re trying to seek the [U visa] certification.”
In March, for example, a North Carolina district attorney refused to sign a U-visa application for a pregnant woman who had reported an assault by her boyfriend. On the document rejecting the application, part of which was reprinted in The Charlotte Observer, Locke Bell, the county district attorney, wrote: “assault on a Latino by a Latino is not the rational[e] for the statue.” He later told the paper that he would only certify applications from Latinos victimized by non-Latinos.
Other reasons law enforcement officials have refused to certify applications include that the victim didn’t appear to have serious injuries and because officials said they “did not feel comfortable” granting the victim legal status, according to a 2013 American University study. Since the certification is only part of the application, law enforcement officials can’t unilaterally award the victim legal status. But the report said that’s one of the misperceptions some have about U visas.
Officials have broad discretion on whether to sign an application, so even when their decisions seem contrary to the statute, there’s little victims can do. They can always ask for certification from another agency if they get turned away, Park said, although law enforcement officials sometimes ask who else they’ve approached.
USCIS has tried to correct misperceptions about the law. Officials from the agency have visited more than 39 cities to educate law enforcement and others about the U visa, the agency said in an e-mail to FRONTLINE, adding that it fields inquires from law enforcement officials “on a daily basis.” But it can’t determine when officials should sign off on a form, adding that because the agency is the final arbiter on the application, “USCIS must remain neutral.”
A NEW FOCUS ON GENDER BIAS
Undocumented victims can face barriers similar to those other women encounter when reporting sexual assaults, such as law enforcement agencies who don’t take their claims seriously. Under the Obama administration, the Department of Justice has begun investigating police departments for gender bias in failing to investigate sexual assaults, and in at least one case, those of undocumented women in particular.
The DOJ has investigated the New Orleans police department, as well as three Montana institutions — the University of Montana, the Missoula County attorney’s office and its police department — for failing to pursue these crimes. In Missoula in 2012, the DOJ found that detectives conducted shoddy investigations in which they interrogated women who reported rapes about their sexual history or asked why they didn’t fight back. In one case, a woman was told that her attacker “seemed remorseful.” Last month, the DOJ concluded that the police department had made significant changes to how it responds to sexual assault. The other agencies are still working to implement reforms.
In Maricopa County, Arizona, the Justice Department has been investigating the sheriff’s office for engaging in unconstitutional policing, in particular how it treats Latinos in the community. Amid the investigation, the DOJ said the sheriff’s office admitted that it had failed to properly investigate more than 400 cases of sexual assault and child molestation over a three-year period in 2007. In many of the cases, the sexual assault victims were undocumented Latinos or their children.
The failure to investigate these crimes came as the department pursued an aggressive campaign of arresting Latinos who were in the country illegally.
The department has denied wrongdoing, and the DOJ has taken it to court. Last week, a judge determined that the sheriff’s office engaged in racial profiling of Latinos. The court hasn’t yet ruled on the other allegations.